Of the na SECTION XX. BOTTOMRY AND RESPONDENTIA. BOTTOMRY is a contract in the nature of a mortgage of a ship, ture of bot- whereby the owner borrows money to enable him to fit out the tomry and respond- ship, or to purchase a cargo for the intended voyage, and pledges entia. the keel, or bottom of the ship, purs pro toto, as a security for the repayment; and it is stipulated, that if the ship be lost, the lender shall lose his money, but if she arrive safe, not only the ship and tackle, but also the person of the borrower, shall be liable for the money lent, with such interest as may have been agreed upon. This contract may be in the form of a bill of sale, or of a deed poll, called a bill of bottomry, executed by the borrower, or of a bond with a penalty. Respondentia is a contract of a similar nature; it is a loan on the security of the goods on board the ship, the repayment of which is in general made to depend on the safe arrival of the goods. The difference between respondentia and bottomry is, that the one is a loan upon the ship, the other upon the goods, the repayment *1215 of which depends on the safe arrival of the ship in one case, and of the goods in the other. In bottomry, the ship and tackle, together with the person of the borrower, are liable for the loan; but in respondentia, the lender has in general only the personal security of the borrower, for the merchandize on board must, from its nature, be sold or exchanged in the course of the voyage, and he has no lien upon or interest in the homeward cargo, purchased with the produce of the goods upon which the money was lent." In case of urgent necessity, the master may hypothecate the ship or goods to enable him to complete his enterprise, but he can only do it in a foreign country, where he has no opportunity of communicating with the owner; and the owners are not personally responsible on such contracts, the remedy of the lender is against the ship and the master. An instrument executed in a foreign port by the master of a ship, reciting, that his vessel, bound to London, had received · considerable damage, and that he had borrowed 1077/. to defray the expenses of repairing her, proceeded as follows:-"I bind myself, my ship, her tackle, &c., as well as her freight and cargo, to pay the above sum, with 121. per cent. interest, bottomry premium; and I further bind myself, my ship, &c., to the payment of that sum in eight days after my arrival at the Menetone v. Gibbons, 3 T. R. 267. Marsh. 738. Id. Busk v. Fearon, 4 East, 319. And see Sumner v. Green, 1 H. Bl. 301. 2 Bl. Com. 458. Lister v. Baxter, 2 Stra. 695. Abbott Ship. 125. La Isabel, 1 Dodson, 273. Case of the Gratitude, 3 Robinson, 240. port of London; and I do hereby make liable the said vessel and her cargo, whether she do or do not arrive at the port of London, in preference to all other debts or claims, until such principal sum, with 127. per cent. bottomry premium, and all charges are duly paid;" held, upon error, that this was an instrument of bottomry, for an intention sufficiently appeared from the whole of it, that the lender should take upon himself the peril of the whole voyage, and that the words, "my arrival," must be understood to mean, "my ship's arrival." ry cannot An assured on bottomry cannot recover against the under- The aswriter, unless there has been an actual total loss of the ship; sured upfor if the ship exist in species, in the hands of the owners, on bottom*though under circumstances that would entitle the assured on recover the ship to abandon, it will prevent its being an utter loss with- unless in the meaning of the bottomry bond. A lender on bottomry there be a cannot recover if a loss happen by capture, if it be such as to total loss of the ship occasion a total loss; but if the ship be taken and detained for a short time, and yet arrive at the port of destination within the time limited, (if the time be mentioned in the condition,) the bond is not forfeited, and the obligee may recover. *1216 bottomry. An action cannot be maintained on a policy of insurance Partners where the plaintiff's interest is founded on a bottomry bond cannot lend on made jointly to the plaintiff and another, although they are general partners in trade, for the bond is void under 6 Geo. I, c. 18, which prohibits lending by partners on bottomry. The court of admiralty have jurisdiction over hypothecation instruments made in a foreign country. By stat. 7. Geo. I, c. 21, s. 2, all contracts entered into by any of his Majesty's subjects, or any person in trust for them, for the loan of any money by way of bottomry on any ship in the service of foreigners, and bound to or designed to trade in the East Indies, are void." India. By stat. 19 Geo. II, c. 37, s. 5, "all money lent on bottomry, Bottomry or at respondentia, upon ships belonging to any of his Majes- upon ships ty's subjects, bound to or from the East Indies, must be lent trading to only on the ship, or upon the merchandises on board, and shall or from be so expressed in the condition of the bond, and the benefit of salvage shall be allowed to the lender, who alone shall have a right to make insurance on the money so lent; and no borrower of money shall recover more than the value of his interest on the ship, or in the effects laden on board, exclusive of the money so borrowed; and in case it shall appear that the value of his share in the ship, or the effects on board, does not amount to the full sum he has borrowed, such borrower shall ⚫ Simonds v. Hodgson, 3 B. & Ad. 50, (23 Eng. C. L. 29,) overruling S. C. 6 Bing. 114. (19 Eng. C. L. 22.) e Thompson v. Royal Exchange Assurance Company, 1 M. & S. 30. C Joyce v. Williamson, Park, 627. 2 Marsh. 760. Everth v. Blackburne, 2 Stark. 66. (3 Eng. C. L. 247.) 6 M. & S. 152. Johnson v. Shippen, 2 Lord Raym. 982. Menetone v. Gibbons, 3 T. R. 267. VOL. II.-27 be responsible to the lender for so much of the money bor*1217 rowed as he has not laid out on the ship or merchandise laden thereon, with lawful interest for the same, in the proportion the money laid out shall bear to the whole money lent, notwithstanding the ship or merchandise shall be totally lost." SECTION XXI. ACTION ON THE POLICY. THE form of action on a policy is assumpsit, when the policy is not under seal; or debt, or covenant, when it is under seal. The action may be brought either by the person in whose name it is made, as by a broker or an agent, or by the parties beneficially interested. If the policy should be effected in the name of two persons, when only one of them is interested, the action may be brought in the name of that one. As the claim in an action on the policy must be for unliquidated damages, unless an adjustment has taken place, the defendant cannot be arrested and held to bail without a judge's order, even in case of a total loss or valued policy. *1218 SECTION XXII. THE DECLARATION AND PLEADINGS. WHETHER the action be in assumpsit, debt or covenant, the averments in the declaration are so nearly similar that they may be considered under the same head. The policy must be described in the declaration either in the precise terms in which it is made, or according to its legal effect; qualifications introduced into the policy by means of warranties, or exceptive stipulations, should also be stated. Where the regulations of an association of ship-owners, combined for the mutual assurance of each other's ships, were indorsed on the back, and were declared to form part of the policy to which the shipowners were subscribers; it was held, that the declaration ought to set out the regulations as well as the policy. * a Parker v. Beasley, 2 M. & S. 426. Hagedorn v. Oliverson, Id. 485. Park, 403. Marsh v. Robinson, 4 Esp. 98. Lear v. Heath, 5 Taunt. 201. (1 Eng. C. L. 76.) Lambe v. Dubois, Id. 202. 2 Ch. Pl. 103. Hughes, Ins. 465. See Latham v. Rutley, 2 B. & C. 20. (9 Eng. C. L. 10.) e Strong v. Harvey, 3 Bing. 304. (11 Eng. C. L. 12.) 11 Moore, 72. In an action on a valued policy, where the goods had been Alteration estimated at too low a sum, and the mistake was corrected by in the the insertion of an increased sum in the margin, the declara- policy. tion stated the policy according to its altered state, without noticing the original value, and it was held sufficient; for at the time of the alteration all was in fieri. But when the alteration has been made after the execution of the instrument, that fact should in general be stated. Clauses which do not bear on the plaintiff's cause of action, and which are unnecessary to a just comprehension of it, such as the enumeration of all the perils, when the loss is attributed only to one of them, need not be detailed.c defendant. The subscription of the defendant to the policy, and his pro- Subscripmise to indemnify the insured against the loss, are next stated. tion of the When the policy, in the common printed form on the ship and goods, contains a memorandum declaring the insurance to be on goods, a general averment is proper, that the defendant became an insurer on the premises mentioned in the policy. of the If the goods be required by the terms of the policy to be Shipment laden at a certain port, it must be averred that they were so laden; or if the policy be on particular goods, it is proper to goods. state that such goods were put on board. But where the declaration stated, that the policy was on indigo and bale goods, and that divers goods of great value were shipped, and that the insured was interested in them, and that the policy was made on the said goods for the use and benefit of the insured; it was held sufficient, on special demurrer. An averment of interest is necessary as well in cases of a Averment policy on foreign as on British ships, unless there be a clause of interest. *1219 making proof of interest unnecessary, as "interest or no interest," or, "without further proof of interest than the policy," or words of like effect.s By Reg. Gen. Hill. T. 4 W. IV, reg. 5, it is ordered, that in actions on policies of insurance the interest of the assured may be averred thus, "that A., B., C., and D., or some or one of them were or was interested," &c., and it may also be averred "that the insurance was made for the use and benefit, and on the account of the person or persons so interested." the above rule, the persons in whom the interest was vested must have been described with great accuracy, so that the insurers might know from the declaration who were the interested persons. An averment of interest at the time of effect ■ Robinson v. Tobin, 1 Stark. 336. (2 Eng. C. L. 416.) b2 Ch. Pl. 103. 110. Hughes, 464. 4 Haughton v. Ewbank, 4 Camp. 88. Before Id. Cotterill v. Caff, 4 Taunt. 285. Cousins v. Nantes, 3 Taunt. 513. See ante, 1133. h Reg. Gen. H. T. 4 W. IV. iSee Cohen v. Hannam, 5 Taunt. 101. (1 Eng. C. L. 26.) Bell v. Ansley; 16 East, 141. Wright v. Welbie, 1 Ch. 49. Millish v. Bell, 15 East, 4. Carruthers v. Sheddon, 6 Taunt. 14. (1 Eng. C. L. 293.) ing the policy is immaterial, and if averred need not be proved; it is sufficient to aver and prove that the interest was vested during the period of the risk." Sailing of An averment that the ship sailed on her voyage, is introthe ship. duced to show a compliance with the policy. But whether the ship sailed before or after the making of the policy is immaterial, as every policy contains the words "lost or not lost." An averment therefore that the ship sailed after, is satisfied by proof that she sailed before the policy was made. But where the policy was "at and from," a place, an averment that the ship was lost after she had sailed on her voyage, is not satisfied by proof that she was lost before she sailed. Averment of loss. The cause of the loss should be correctly stated; it must appear that it was within the terms of the policy. If a loss be alleged by the perils of the sea, and it appear to have happened from barratry, the variance will be fatal. It is not ne*1220 cessary, however, to aver the loss in the very words of the policy; if the facts alleged come within the ineaning of the words, it is sufficient. Thus, an averment that the goods were lost by the fraud and negligence of the master and mariners, is a sufficient allegation of barratry, though the term "barratry," being a well known word of art, is a more correct description. If the loss happened through the collusion of the master with the enemy, the loss may be laid by capture or by barratry.s An averment of the amount of the loss is not material, for a partial loss may be given in evidence under an averment for a Damages. total loss. The damages are severable, and the plaintiff may recover less, though he cannot recover more than those alleged in the declaration. So the plaintiff may give in evidence any damage that is within the cause of action as stated, without its being specially averred. Thus, when some of the goods had been spoiled, and some saved, and the declaration alleged that the vessel was sunk, evidence of salvage was held to be admissible. When an adjustment has taken place, it need not be declared upon specially, but may be given in evidence as an admission upon the usual declaration, or upon an account stated.j Rhind v. Wilkinson, 2 Taunt. 237. b Peppins v. Solomon, 5 T. R. 496. 2 N. R. 308. 6 Taunt. 465. (1 Eng. C. L. 454.) Ábitbol v. Bristow, 6 Taunt. 462. (1 Eng. C. L. 454.) 42 Saund. 201. f. 2 Ch. Pl. 106. Hughes, 469; and see Cullen v. Butler, 5 M. & S. 461. Phillips v. Barber, 5 B. & A. 161. (7 Eng. C. L. 55.) Butler v. Wildman, 3 B. & A. 398. (5 Eng. C. L. 324.) 'Knight v. Cambridge, 2 Lord Raym. 1349. 1 Stra. 581. Arcangelo v. Thompson, 2 Camp. 620. See Hodson v. Malcomb, 2 N. R. 336. h Gardiner v. Croasdale, 2 Burr. 904. i Carey v. King, Hardw. 304. Hughes, 471. 2 Ch. Pl. 106. Rogers v. Naylor, Park, 194. Christian v. Coombe, 2 Esp. 489. Sherriff v. Potts, 5 Esp. 96. |